# Appendix — Norfolk Shipbuilding & Drydock Corp. v. Garris

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1510%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1050

## Text

PUBLISHED :

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CELESTINE GARRIS, Administratrix of
the estate of Christopher Garris,
deceased,

Plaintiff-Appellant,

Vv. No.
98-2368

NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION; E. T. GRESHAM,
INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-98-382-2)

Argued: December 2, 1999
Decided: April 3, 2000

Before MURNAGHAN and WILLIAMS, Circuit Judges,
and Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit, sitting
by designation.

Reversed and remanded by published opinion. Judge
Williams wrote the opinion, in which Judge Murmaghan
joined. Senior Judge Hall wrote an opinion concurring in the
judgment.

COUNSEL

ARGUED: John R. Crumpler, Jr, KAUFMAN &
CANOLES, P.C., Norfolk, Virginia, for Appellant. Robert
Martin Tata, HUNTON & WILLIAMS, Norfolk, Virginia,
for Appellees. :

ON BRIEF: Patrick H. O’Donnell, KAUFMAN &
CANOLES, P.C., Norfolk, Virginia, for Appellant. Carl D.
Gray, HUNTON & WILLIAMS, Norfolk, Virginia, for
Appellee Norfolk Shipbuilding; Glen A. Huff, M. Todd
Gerber, HUFF, POOLE & MAHONEY, P.C., Virginia
Beach, Virginia, for Appellee Gresham.

OPINION
WILLIAMS, Circuit Judge:

The sole issue on appeal is whether we should
construe or extend the United States Supreme Court’s
decision in Moragne v. States Marine Lines, Inc., 398 U.S.
375 (1970), which recognized a general maritime. law cause
of action for wrongful death based upon unseaworthiness, to
include a general maritime law cause of action for wrongful
death based upon negligence. We agree with the district
court that the Supreme Court did not create a general
maritime law cause of action for wrongful death based upon
negligence in Moragne. We find it appropriate, however, to
apply the principles of Moragne and its progeny to recognize
one. We, therefore, reverse the district court’s dismissal of
Celestine Garris’s claim and remand for further proceedings.

I.

Christopher Garris (Garris’s son) worked as a
sandblaster aboard the USNS MAJ. STEPHEN W. PLESS,
a ship berthed in the navigable waters of the United States.
He was actually employed by Tidewater Temps but worked

App. 2

eee aaa...

on behalf of Mid-Atlantic Coatings (MidAtlantic), a
subcontractor of Norfolk Shipbuilding & Drydock
Corporation (Norfolk). E.T. Gresham, Inc. (Gresham),
another subcontractor for Norfolk, had employees aboard
the same ship. On April 8, 1997, a crane operator working
for Gresham accidentally caused Garris’s son to fall off a
reserve hopper on the ship, which was used to load sand for
sandblasting. Garris’s son died as a result of the accident.

After receiving statutory death benefits under the
Longshore and Harbor Workers’ Compensation Act
(LHWCA), 33 U.S.C.A. §§ 901-950 (West 1986 & Supp.
1999), Christopher Garris’s mother, Celestine Garris
(Garris), brought suit in the United States District Court for
the Eastern District of Virginia against Norfolk and
Gresham, seeking recovery for wrongful death based upon
negligence under general maritime law and the Virginia
wrongful-death statute. According to Garris, the crane
operator’s negligence and Norfolk’s use of an inadequate
communication signaling system were the reasons for her
son’s death. The district court dismissed her suit on the
ground that general maritime law does not recognize a
negligence based cause of action.!

Garris argues on appeal that the Supreme Court’s
holding in Moragne v. States Marine Lines, Inc., 398 U.S.
375 (1970), which recognized a general maritime law cause
of action for wrongful death based upon unseaworthiness,
also established a general maritime law cause of action for

' The district court dismissed with prejudice Garris’s general
maritime law wrongful-death claim. The district court dismissed without
prejudice her state law claim under the Virginia wrongful-death statute.
Garris has not appealed the district court’s dismissal of her state law
claim and has since filed that claim in state court only against Gresham.

App. 3

wrongful death based upon negligence. In the alternative,
Garris asks us to extend the holding of Moragne to create a
general maritime law cause of action for wrongful death
based upon negligence. Reviewing this legal question de
novo, see Meekins v. United Transp. Union, 946 F.2d 1054,
1057 (4th Cir. 1991) (“We review the district court’s
determinations of law de novo.”), we conclude that the
principles developed in Moragne_ and its progeny compel us
to recognize a negligence-based action. We, therefore,
reverse the district court’s dismissal of this claim and
remand for further proceedings.

Il.

In order to determine whether the district court erred
in dismissing Garris’s suit, we must first consider whether
the Supreme Court in Moragne v. States Marine Lines, Inc.,
398 U.S. 375 (1970), intended to create a general maritime
law cause of action for wrongful death based upon
negligence. Accordingly, we must examine the language
and context of Moragne, including the events and
developments leading up to the Supreme Court’s decision in
that case.

A. Pre-Moragne

Our discussion begins with The Harrisburg, 119 U.S.
199 (1886), overruled by Moragne v. States Marine Lines.
Inc. , 398 U.S. 375 (1970), in which the Supreme Court held
that general maritime law did not allow recovery for
wrongful death. In The Harrisburg, the widow and child of
the decedent, Rickards, sought to recover damages for
Rickards’s death “caused by the negligence of the steamer”
that collided with Rickards’s schooner. See id. at 199. The
Court had to determine whether Rickards’s survivors could
recover for wrongful death absent a state statute or act of
Congress affirmatively allowing such recovery. See id. at

App. 4
_ Re re Ne TE RE RE TE EE Oe Oe

204. The Court noted that at common law there was no civil
action for an injury that resulted in death and that English
maritime law also had no cause of action for wrongful death
on the high seas. See id. The Court concluded that because

it is now established that in the courts
of the United States no action at law can be
maintained for [wrongful death] in the
absence of a statute giving the right, and it
has not been shown that the maritime law,
as accepted and received by maritime
nations generally, has established a different
rule for the government of the courts of
admiralty from those which govern courts
of law in matters of this kind, we are forced
to the conclusion that no such action will lie
in the courts of the United States under the
general maritime law.

Id. at 213.

Despite the rule of The Harrisburg, which prohibited
recovery for wrongful death under general maritime law,
two significant developments in maritime law softened the
harshness of The Harrisburg. First, in 1920, Congress
enacted both the Death on the High Seas Act (DOHSA), 46
U.S.C.A. §§ 761 - 768 (West 1975 & Supp. 1999), and the
Jones Act, 46 U.S.C.A. app. § 688 (West Supp. 1999),
which afforded recovery for wrongful death in certain
circumstances.’ Second, federal courts began to recognize

* DOHSA provides, in pertinent part, that “[wJhenever the death of

a person shall be caused by wrongful act . . . occurring on the high seas
beyond a marine league from the shore of any State... the personal
representative of the decedent may maintain a suit for damages in the
district courts of the United States.” 46 U.S.C.A. § 761 (West 1975).
(continued)

App. 5

the application of state wrongful-death statutes to fatal
accidents that occurred in state territorial waters. See
Yamaha Motor Corp. v. Calhoun , 516 U.S. 199, 206-08
(1996) (describing the response of “[flederal admiralty
courts [in] temper[ing] the harshness of The Harrisburg’s
tule by allowing recovery under state wrongful-death
statutes”); Western Fuel Co. v. Garcia, 257 U.S. 233, 242
(1921) (finding that California’s wrongful-death statute
applied to the death of a maritime worker in state territorial
waters). Consequently, in the years that followed The
Harrisburg, state wrongful-death statutes -- which often
encompassed wrongful-death causes of action based upon
negligence, but not unseaworthiness, see Moragne, 398 U.S.
at 398-99 -- “proved an adequate supplement to federal
maritime law[ ] until a series of this Court’s decisions
transformed the maritime doctrine of unseaworthiness into a
strict liability rule.”? Yamaha, 516 U.S. at 207-08. Because
of this new development in maritime law, unseaworthiness,
which originally was an obscure and rarely used cause of
action for which many state wrongful-death statutes did not

DOHSA, therefore, provides a federal claim for the wrongful death of
any person that occurs more than a marine league, or three miles, from
shore. ~

The Jones Act states that “[a]Jny seaman who shall suffer personal
injury in the course of his employment may . . . maintain an action for
damages at law . . . and in case of death of such seaman as a result of any
such personal injury the personal representative may maintain an action
for damages at law .. . .” 46 U.S.C.A. app. § 688(a) (West Supp. 1999).
Thus, the Jones Act permits recovery for the wrongful death of a seaman
in all navigable waters.

* Mahnich v. Southem S.S. Co., 321 U.S. 96 (1944), Seas
Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and Mitchell v. Trawler
Racer, Inc., 362 U.S. 539 (1960), all set forth and developed the rule that
a shipowner’s liability for unseaworthiness is absolute.

App. 6

account, evolved into a cause of action that “soon eclipsed
ordinary negligence as the primary basis of recovery when a
seatarer was injured or killed.” Id. at 208. The evolution of
the unseaworthiness doctrine, however, also created gaps in

the law whereby recovery for wrongful death based upon

unseaworthiness could depend on mere happenstance. For

example, if death occurred within state territorial waters,

then recovery was unlikely because many state

wrongful-death statutes did not include causes of action

based upon unseaworthiness. See Moragne, 398 U.S. at

395. By contrast, if the death occurred more than three

miles from shore, then recovery for wrongful death based

upon unseaworthiness was possible under DOHSA. See id.

The emergence of unseaworthiness as a viable and powerful

tool for asserting claims against shipowners, and the

discrepancies that necessarily followed, set the stage for

Moragne, which gave the Supreme Court the opportunity to

revisit the vitality and soundness of The Harrisburg in light

of the changing maritime landscape.

B. Moragne v. States Marine Lines. Inc.

Moragne was a longshoreman who was killed aboard
a ship in Florida’s navigable waters. See Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 376 (1970). His widow
sued in state court for wrongful death based upon
unseaworthiness and negligence. See id. After removal to
federal court, the district court dismissed her
unseaworthiness claim, holding that general maritime law
- did not permit recovery for wrongful death based upon
unseaworthiness in state territorial waters, and, unlike her
negligence-based claim, Florida’s wrongful-death statute did
not encompass wrongful-death based upon unseaworthiness.
See id. The only issue on appeal, therefore, was whether
general maritime law recognized a cause of action for
wrongful death based upon unseaworthiness. See id. at 377.

App. 7

The Court’s analysis began with The Harrisburg ,
which, as noted above, based its holding upon the premise
that neither American nor English common law recognized
civil actions for injuries that resulted in death. The Moragne
Court, however, concluded that the Court’s construction of
the common law rule in The Harrisburg “was based upon a
particular set of factors that had, when The Harrisburg was
decided, long since been thrown into discard even in
England, and that had never existed in this country at all.”
Id. at 381. Moreover, the Court noted that significant
developments in American maritime law had _ further
undercut The Harrisburg, including the emergence of state
wrongful-death statutes and Congress’s enactment of
DOHSA and the Jones Act. See id. at 390. The Court stated
that

the work of the legislatures has made
the allowance of recovery for wrongful
death the general rule of American law, and
its denial the exception. Where death is
caused by the breach of a duty imposed by
federal maritime law, Congress has
established a policy favoring recovery in the
absence of a legislative direction to except a
particular class of cases.

Id. at 393. The Court, therefore, found it necessary to
address “whether Congress has given such a direction[to
deny recovery for wrongful death under general maritime
law] in its legislation granting remedies for wrongful deaths
in portions of the maritime domain.” Id.

Examining the Jones Act and DOHSA to determine if
they should be construed to preclude a general maritime
cause of action for wrongful death within state territorial
waters, the Moragne Court pointed to three anomalies that
would be perpetuated if Congress had indeed intended the

App. 8

Jones Act and DOHSA to preclude such recovery. First,
identical conduct violating federal law in state territorial
waters, such as the furnishing of an unseaworthy ship,
would give rise to liability only if the victim were injured,
but not killed. See id. at 395. Second, identical violations
of the duty to furnish a seaworthy ship that resulted in death
would give rise to liability for unseaworthiness under
DOHSA more than three miles from shore but not within
three miles of shore if the state’s wrongful-death statute did
not encompass unseaworthiness claims. See id. Third, a
seaman, covered by the Jones Act, would have no cause of
action for unseaworthiness while a longshoreman “to whom
the duty of seaworthiness was extended only because he
performs work traditionally done by seamen, [would have]
such a remedy when allowed by a state statute.” Id. at
395-96. Based upon these obvious anomalies, which arose
from the emergence of unseaworthiness as a viable and
prominent maritime cause of action, the Court concluded
that Congress could not have intended to foreclose
wrongful-death remedies in state territorial waters when it
passed the Jones Act and DOHSA. The Court reasoned
instead that “[t]he void that existed in maritime law up until
1920 [when Congress enacted DOHSA] was the absence of
any remedy for wrongful death on the high seas. Congress,
in acting to fill that void, legislated only to the three-mile
limit because that was the extent of the problem.” Id. at
398. Congress did not need to extend its reach into state
territorial waters because “[t]he beneficiaries of persons
meeting death on territorial waters did not suffer at that time
from being excluded from the coverage of [DOHSA],”
largely because “the primary basis for recovery under state
wrongful death statutes was negligence” and
unseaworthiness was a little used cause of action. Id.
However,

App. 9

[s]ince that time the equation has
changed drastically, through this Court’s
transformation of the shipowner’s duty to
provide a seaworthy ship into an absolute
duty not satisfied by due diligence. The
unseaworthiness doctrine has become the
principal vehicle for recovery by seamen for
injury or death, overshadowing the
negligence action made available by the
Jones Act; and it has achieved equal
importance for longshoremen and other
harbor workers to whom the duty of
seaworthiness was extended because they
perform work on the vessel traditionally
done by seamen. The resulting discrepancy
between the remedies for deaths covered by

[DOHSA] and for deaths that happen to fall
within a state _wrongful-death statute not

encompassing unseaworthiness could not
have been foreseen by Congress.

Id. at 399 (internal citations omitted and emphasis added).

The Court concluded that the unforeseen development
of unseaworthiness as a primary means of recovery under
maritime law -- and not a congressional intent to foreclose
recovery for wrongful death in state territorial waters -- was
the primary reason for the anomalies that had emerged after
The Harrisburg. See id. at 399-400. Noting that its
recognition of unseaworthiness as a general maritime law
wrongful-death cause of action furthered Congress’s stated
purpose of “uniformity in the exercise of admiralty
jurisdiction” in enacting the Jones Act, id. at 401 (internal
quotation marks omitted), the Court overruled The
Harrisburg, and stated that “[w]e do not regard the rule of
The Harrisburg as a closely arguable proposition -- it rested

App. 10

on a most dubious foundation when announced [and] has
become an increasingly unjustifiable anomaly as the law
over the years has left it behind,” id. at 404. Concluding
that its decision “d[id] not require the fashioning of a whole
new body of federal law, but merely remov{al of] a bar to
access to the existing general maritime law,” id. at 405-06,
the Court held that “an action does lie under general ~
maritime law for death caused by violation of maritime
duties,” id. at 409.4

Our examination of the language and context of
Moragne reveals three crucial points that guide our analysis.
First, the sole issue on appeal in Moragne was whether
general maritime law recognized a wrongful-death cause of
action based upon unseaworthiness; negligence was simply
not an issue before the Court. See id. at 377. Second, the
Court in Moragne referred repeatedly to unseaworthiness
without expressly mentioning negligence. See Ford v.
Wooten, 681 F.2d 712, 715 (11th Cir. 1982) (noting that
Moragne mentioned unseaworthiness but never expressly
discussed negligence); Ivy v. Security Barge Lines, Inc., 606
F.2d 524, 527 (Sth Cir. 1979) (en banc) (“[Moragne] dealt
only with an unseaworthiness claim asserted under general
maritime law.”). Third, the unforeseen evolution of the

* Two years after the Court’s decision in Moragne, Congress
passed the 1972 amendments to the Longshore and Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C.A. §§ 901-950 (West 1986 &
Supp. 1999), and specifically eliminated unseaworthiness as a cause of
action for wrongful death as it related to longshoremen and harbor
workers, such as Garris’s son. See 33 U.S.C.A. § 905(b) (West 1986)
(“The liability of the vessel under this subsection shall not be based upon
the warranty of seaworthiness . . .”). The general maritime law cause of
action for wrongful death based upon unseaworthiness still remains
viable for true seamen. See Miles v. Apex Marine Corp., 498 U.S. 19,
30 (1990).

App. 11

unseaworthiness doctrine as a powerful tool for recovery
under maritime law was the stated predicate for the Court’s
analysis, and indeed, it played a large part in the Court’s
decision to overrule The Harrisburg. As the Court later
recognized in Yamaha Motor Corp. v. Calhoun, 516 U.S.
199 (1996), “[t]he disparity between the unseaworthiness
doctrine’s strict-liability standard and negligence-based state
wrongful-death statutes figured prominently in our landmark
Moragne decision.” Id. at 208.

The Moragne Court’s clear focus on unseaworthiness,
as opposed to maritime duties as a whole, is most evident in
the Court’s analysis of the three anomalies that arose after
the emergence of unseaworthiness as a strict liability
doctrine. Two of the three anomalies identified by the Court
in Moragne were that: (1) identical violations of the duty of
seaworthiness, each resulting in death, could give rise to
liability more than three miles from shore but not within the
territorial waters of a state that did not include

; unseaworthiness in its wrongful-death statute, and (2) a
seaman, covered by the Jones Act, would have no cause of
action for unseaworthiness while a longshoreman “to whom
the duty of seaworthiness was extended only because he
performs work traditionally done by seamen, [would have]
such a remedy when allowed by a state statute.” Id. at
395-96. The Court framed these two anomalies specifically
in terms of unseaworthiness; these anomalies were cause for
concern only within that context. The third anomaly, that
identical violations of federal law, such as the furnishing of
an unseaworthy vessel, would give rise to liability if the
victim was injured but not killed if the state wrongful-death
statute did not encompass unseaworthiness, see id. at 395,
arguably might have applied to negligence-based actions, at
least to the extent that state wrongful-death statutes did not

xt include a cause of action for negligence-based wrongful

death. As the Court noted in Miles v. Apex Marine Corp.,

App. 12

498 U.S. 19 (1990), however, every state had a
wrongful-death statute that did provide recovery for
negligence-based actions even where the state did not
provide similar recovery for unseaworthiness-based actions.
See id. at 25. Consequently, none of these three anomalies,
which played a prominent role in the Moragne Court’s
decision, applied equally between a general maritime law ©
cause of action for wrongful death based upon
unseaworthiness and a general maritime law cause of action
for wrongful death based upon negligence. We have no
difficulty concluding that Moragne recognized only a
general maritime law cause of action for wrongful death
based upon unseaworthiness.

at Post-Moragne

Garris argues, nevertheless, that the Supreme Court’s
later decision in Yamaha Motor Corp. v. Calhoun, 516 U.S.
199 (1996), suggests that Moragne’s holding was broader
than a simple recognition of a general maritime law cause of
action for wrongful death based upon unseaworthiness. In
Yamaha, the Supreme Court addressed whether state
remedies remain applicable in “maritime wrongful-death
cases in which no federal statute specifies the appropriate
relief and the decedent was not a seaman, longshore worker,
or person otherwise engaged in a maritime trade.” Id. at
202. The Court held that “state remedies remain applicable
in such cases and have not been displaced by the federal
maritime wrongful-death action recognized in [Moragne].”
-Id. Yamaha involved a jet ski accident that occurred in
navigable waters. The parents of the decedent sued the jet
ski manufacturer, which responded that state remedies were
not applicable to accidents in navigable waters and that
federal maritime law controlled to the exclusion of state law.
The Court, therefore, had to address whether “the federal
maritime claim for wrongful death recognized in Moragne

App. 13

suppl[ies] the exclusive remedy in cases involving the
deaths of nonseafarers in territorial waters.” Id. at 205. In
deciding that federal maritime claims for wrongful death did
not displace state remedies, the Court briefly discussed
Moragne and included two footnotes that, according to
Garris, support her position. The first, footnote seven, states
that

fi]f Moragne’s wrongful-death action
did not extend to non- seafarers like [the
decedent], one could hardly argue that
Moragne displaced the state-law remedies
the Calhouns seek. Lower courts have held
that Moragne’s wrongful-death action
extends to nonseafarers. We assume, for
purposes of this decision, the correctness of
that position. Similarly, as in prior
encounters, we assume without deciding that
Moragne also provides a survival action.
The question we confront is not what
Moragne added to the remedial arsenal in
maritime cases, but what, if anything, it
removed from admiralty’s stock.

Id. at 211 n.7 (internal citations omitted). The other,
footnote eleven, states that “[w]hile unseaworthiness was
the doctrine immediately at stake in Moragne, the right of
action, as stated in the Court’s opinion, is ‘for death caused
by violation of maritime duties.”” Id. at 214 n.11 (citing,
inter _alia) Kermarec v. Compagnie _ Generale
Transatlantique, 358 U.S. 625, 630 (1959) (stating that
negligence is a violation of a maritime duty), and G.

App. 14

Gilmore & C. Black, The Law of Admiralty 368 (2d ed.
1975)).

Garris argues that these footnotes demonstrate that the
Court interprets Moragne as recognizing a right of action
“for death caused by violation of maritime duties,” including
negligence. Moragne, 398 U.S. at 409. We disagree.
Although footnotes seven and eleven, read by themselves,
arguably support Garris’s position, particularly footnote
eleven’s reference to “the right of action” as being for the
“violation of maritime duties,” we note that the Court in
footnote seven expressly refrained from addressing this
question: “The question we confront is not what Moragne
added to the remedial arsenal in maritime cases, but what, if
anything, it removed from admiralty’s stock.” Yamaha, 516
U.S. at 210 n.7. Moreover, the Court in Yamaha recognized
that Moragne relied in large part on unseaworthiness, stating
explicitly that “[t]he disparity between the unseaworthiness
doctrine’s strict liability standard and negligence-based state
wrongful-death statutes figured prominently in our landmark

* G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed. 1975)
States that “[f]rom Justice Harlan’s discussion of the ‘anomalies’ which
the Moragne decision was designed to avoid several conclusions Clearly
follow .... The remedy provides recovery for deaths caused by
negligence as well as for deaths caused by unseaworthiness... .” We
note that this treatise offers no analysis to support its assertion that
Moragne created a general maritime law cause of action for wrongful
death based upon negligence. As discussed above, we construe the
Moragne Court’s analysis of the three anomalies differently than Gilmore
& Black and conclude that the three anomalies applied only in the
context of unseaworthiness. See supra part II.B. (discussing the three
anomalies). At least one circuit has expressly rejected Gilmore &
Black’s reading of Moragne. See Ford v. Wooten, 681 F.2d 712, 717.4
(11th Cir. 1982) (referring to “Gilmore & Black’s unsubstantiated
assertion that negligence is actionable under Moragne”’).

App. 15

Moragne decision,” id. at 208, and that “[t]he uniformity
concern that drove our decision in Moragne related . . . to
the availability of unseaworthiness as a basis of liability,” id.
at 211.. Yamaha’s recognition of the historical and legal
context of Moragne further supports our belief that Moragne
was a limited holding that came in response to a set of
concerns that arose specifically in the context of
unseaworthiness.

Our conclusion is bolstered by those few circuits that
have addressed this issue. In Ford v. Wooten, 681 F.2d 712
(11th Cir. 1982), for example, the Eleventh Circuit refused
to construe Moragne as creating a general maritime law
cause of action for wrongful death based upon negligence,
stating that Moragne,” which mentioned unseaworthiness
but never expressly discussed negligence, pertained only to
an unseaworthiness claim.” Id. at 715. Likewise, in Ivy v.
Security Barge Lines, Inc., 606 F.2d 524 (Sth Cir. 1979) (en
banc), the Fifth Circuit recognized that “Moragne did not
create or even discuss an action for negligence; it dealt only
with death occasioned by unseaworthiness.” Id. at 527.
Even the case upon which Garris relies, Nelson v. United
States, 639 F.2d 469 (9th Cir. 1980), supports our
conclusion that Moragne did not itself recognize a general
maritime law cause of action for wrongful death based upon
negligence. In Nelson, the Ninth Circuit addressed “whether
or not the Government owes a duty of care to the employees
of an independent contractor which has been engaged by the
Government to perform hazardous maritime work.” Id. at
470. In determining the “[t}he precise nature of plaintiff's
cause of action,” the court noted that prior to Moragne,

there was no general maritime common
law cause of action for wrongful death; state
wrongful death acts were applied by federal
courts sitting in admiralty. We have found

App. 16 .
Ee a re ORE OO EE OT ENE UE a MEO TS

no case deciding whether a Moragne suit
may be based upon negligence as well as
unseaworthiness. We hold that the need for
uniformity in maritime wrongful death
actions requires extension of Moragne to
cover claims based on negligence, _ to _ the
exclusion of state wrongful death statutes.

Id. at 473 (internal citation omitted and emphasis added).
Thus, although the court found it appropriate to extend
Moragne, it also recognized that Moragne did not itself
create a general maritime law cause of action for wrongful
death based upon negligence.° Finally, Garris correctly
notes that the Moragne Court referred to maritime duties in

* Indeed, Garris can point to only one federal court of appeals that
has construed Moragne consistently with her position. In Wahlstrom v.
Kawasaki Heavy Indus., 4 F.3d 1084 (2d Cir. 1993), the Second Circuit
addressed whether “actions brought under the federal courts’ admiralty
jurisdiction are governed solely by federal maritime law.” Id, at 1085.
The court, after a brief discussion of Moragne , noted that

[t]he Court was addressing the specific issue of

what, if any remedy should be available for a -
wrongful death caused within state territorial waters
by a vessel’s unseaworthiness, a claim for which there
was no right of recovery under applicable state law.
In fashioning the remedy, however, the Supreme Court
did not limit the new right of recovery to
unseaworthiness claims, but instead established a
general remedy for wrongful death under maritime
law.

Id. at 1088-89 (internal citation omitted). Garris has not offered, nor
have we found, another federal court of appeals decision that has adopted
Wahlstrom’s reading of Moragne. For the reasons stated above, we
disagree with the Second Circuit’s reading of Moragne.

App. 17

its holding: “We accordingly overrule The Harrisburg, and
hold that an action does lie under general maritime law for
death caused by violation of maritime duties.” Id. at 409.
We do not believe, however, that this vague reference to
“maritime duties,” taken in the context of the entire decision
and the events prompting that decision, is sufficient to
counterbalance the Moragne Court’s otherwise clear
reliance on unseaworthiness as the basis for its decision.
The context under which Moragne was decided speaks
volumes; neither the events leading up to Moragne --
specifically, the emergence of unseaworthiness as a strict
liability doctrine and its absence in many state
wrongful-death statutes -- nor the Court’s analysis of the
three anomalies, framed in the specific context of
unseaworthiness, apply equally to negligence-based
actions.’

” Garris argues that notwithstanding the limited issue before the
Court in Moragne and its historical context, the Moragne Court must
have intended to recognize a cause of action of wrongful death for all
breaches of maritime duties because it explicitly overruled The
Harrisburg, which held, in the context of a wrongful-death cause of
action based upon negligence under general maritime law, that general
maritime law did not afford recovery for wrongful death. Garris argues
that “[i]f the Court meant to limit its holding to unseaworthiness, it would
have merely distinguished The Harrisburg.” (Appellant’s Br. at 7.) The
Court in The Harrisburg, however, relied explicitly upon Insurance Co.
v. Brame, 95 U.S. 754 (1877), which held “that by the common law no
civil action lies for an injury which results in death.” Id. at 756. The
Court in The Harrisburg found no reason to apply a different rule in
admiralty than at common law, and, therefore, concluded-that there could
be no civil action for wrongful death in admiralty absent a relevant
statute. See The Harrisburg, 119 U.S. at 213-14. Thus, although the
issue before the Court in The Harrisburg had to do only with
negligence-based wrongful-death actions, its rationale was applicable to
all forms of wrongful death. The Moragne Court, therefore, had to
overrule, rather than distinguish, The Harrisburg in order to create a
general maritime law cause of action for wrongful death based upon

(continued)

App. 18
ee a CRE EL PNT ee I ON ERM Tee ae Cen TCT

Our reading of Moragne, both from the Court’s
language and the context in which it was decided, as well as
its subsequent interpretation, leads us to the inescapable
conclusion that Moragne was, both at its heart and in its
facts, an unseaworthiness case. We, therefore, agree with the
district court and conclude that Moragne did not recognize a
general maritime law cause of action for wrongful death
based upon negligence.

IT.

Having concluded that Moragne v. States Marine
Lines, Inc., 398 U.S. 375 (1970), did not create a general
maritime law cause of action for wrongful death based upon

unseaworthiness. The Moragne Court’s necessary step of overruling The
Harrisburg does not suggest, as Garris argues, that it actually intended to
recognize a general maritime law cause of action for wrongful death
based upon negligence that was not before it on appeal.

We note that the Court in Miles v. Apex Marine Corp., 498 U.S. 19

(1990), read Moragne as recognizing a general maritime law cause of
action for wrongful death based upon unseaworthiness for seamen, as
opposed to only longshoremen, partially because” _Moragne explicitly
overruled The Harrisburg. The Harrisburg involved a true seaman.” Id.
at 30 (internal citation omitted). The other basis for the Miles Court’s
reading of Moragne, however, was that “all three of the ‘anomalies’ to
which the Moragne cause of action was directed involved seamen. . . It
would be strange indeed were we to read Moragne as not addressing a
problem that in large part motivated its result.” Id. The Court in Miles,
therefore, recognized a general maritime law cause of action for
wrongful death based upon unseaworthiness for seamen partially because
the reasoning applied equally between seamen and longshoremen. Here,
however, unlike in Miles, the reasoning does not apply equally between
unseaworthiness and negligence; the three “anomalies” in Moragne
related specifically to a wrongful-death cause of action based upon
unseaworthiness and had little relation to a wrongful-death cause of
action based upon negligence.

negligence, we must now decide whether to extend Moragne
to recognize such a cause of action. Because the creation of
a negligence-based wrongful-death action is consistent with
the principles of uniformity and consistency that formed the
basis of Moragne, and because Congress has not
affirmatively precluded a negligence-based wrongful-death
claim, we find it appropriate to recognize a general maritime
law cause of action for wrongful death based upon
negligence.

In deciding to recognize a general maritime law cause
of action for wrongful death based upon unseaworthiness,
the Moragne Court concluded that

the work of the legislatures has made
the allowance of recovery for wrongful
death the general rule of American law, and
its denial the exception. Where death is
caused by the breach of a duty imposed by
federal maritime law, Congress has
established a policy favoring recovery in the
absence of a legislative direction to except a
particular class of cases.

Id. at 393. Applying this principle, the Moragne Court
examined the Jones Act and DOHSA to determine whether
Congress had expressed an intent to preclude a general
maritime law cause of action for wrongful death based upon
unseaworthiness. The Moragne Court rejected the argument
that DOHSA’s ffailure to account ffor an
unseaworthiness-based claim reflected a congressional
intent to foreclose that cause of action. The Moragne Court,
pointing to the three anomalies described above, noted that
“{t]he resulting discrepancy between the remedies for deaths
covered by [DOHSA] and for deaths that happen to fall
within a state wrongful-death statute not encompassing
unseaworthiness could not have been foreseen by

App. 20

Congress.” Id. at 399. The Moragne Court concluded that
the absence of an unseaworthiness-based wrongful-death
cause of action in DOHSA did not evidence a congressional
intent to foreclose such a cause of action because “no
intention appears that [DOHSA] have the effect of
foreclosing any nonstatutory federal remedies that might be
found appropriate to effectuate the policies of general
maritime law.” Id. at 400. The Moragne Court reasoned,
instead, that creation of a general maritime law cause of
action for wrongful death based upon unseaworthiness was
consistent with the purpose of the Jones Act, which

was intended to achieve uniformity in
the exercise of admiralty jurisdiction by
giving seamen a federal right to recover from
their employers for negligence regardless of
the location of the injury or death. That
strong concern for uniformity is scarcely
consistent with a conclusion that Congress
intended to require the present nonuniformity
in the effectuation of the duty to provide a
seaworthy ship.

Id. at 401 (internal quotation marks omitted). The Moragne
Court concluded that “Congress has given no affirmative
indication of an intent to preclude the judicial allowance of a
remedy for wrongful death to persons in the situation of this
petitioner.” Id. at 393.

The Moragne Court’s examination of the three
anomalies, the Jones Act, and DOHSA is instructive. It
demonstrates an analytical framework under which the
Moragne Court created a general maritime law cause of
action for wrongful death based upon unseaworthiness
under cifcumstances where:- (1) Congress had not
affirmatively expressed an intention to bar such a cause of
action; and (2) creation of that cause of action was

App. 21

consistent with the policies of general maritime law
articulated in the Jones Act -- uniformity in the exercise of
admiralty jurisdiction.

This analytical framework likewise applies in the
present case and counsels in favor of recognizing a
Moragne action based upon negligence.® In the present
case, Garris has no right of recovery under the existing
statutory scheme. Garris cannot recover under DOHSA
because her son died within state territorial waters. She
cannot recover under the Jones Act because her son was a
harbor worker, and not a seaman. And, she apparently
cannot recover against Norfolk under the Virginia
wrongful-death statute because the Virginia worker’s
compensation statute confers broader immunity than the
LHWCA,; unlike the LHWCA, which bars suit only against
the immediate employer,’ the Virginia statute bars state tort

* A “Moragne action” or “Moragne cause of action” is simply
another term for a general maritime law cause of action for wrongful
death. See Miles v. Apex Marine Corp., 498 U.S. 19, 30 (1990)
(referring to a “Moragne cause of action” in deciding whether to apply a
general maritime law wrongful-death action to seamen); Miller _v.

American President Lines, Ltd., 989 F.2d 1450, 1457 (6th Cir. 1993)
(referring to a “Moragne action”).

® The LHWCA sets forth the exclusive remedies for a
longshoreman or harbor worker’s injury or death “occurring upon the
navigable waters of the United States,” including adjoining piers or dry
docks, see 33 U.S.C.A. § 903(a) (West 1986), for injuries caused by a
maritime employer, co-employee, or vessel. See 33 U.S.C.A. §§ 905,
933(i) (West 1986). The LHWCA requires the employer, inter alia, to
compensate the injured longshoreman or harbor worker for certain
disability costs, recovery costs, and to provide death benefits to certain
beneficiaries. See 33 U.S.C.A. §§ 906-910, 914 (West 1986). It also
permits the longshoreman or harbor worker to sue the employer if the
employer fails to pay the prescribed benefits. See 33 U.S.C.A. § 905(a).

(continued)

App. 22

claims against contractors as well as immediate employers. '°
See Va. Code Ann. §§ 65.2-302, 307 (Michie Supp. 1999);
Ward v. Norfolk Shipbuilding & Drydock Corp., 770 F.
Supp. 1118, 1120 (E.D. Va. 1991) (“Under the Virginia Act,
a contractor such as Norshipco is the ‘statutory employer’ of
a subcontractor’s or sub-subcontractor’s employee, and
therefore liable for compensation to such an employee. The
exclusivity provision of the Virginia Act makes the
contractor immune from suit for negligence, provided the
subcontractors were performing the ‘normal work’ of the
contractor. The LHWCA reaches the opposite result with
respect to the liability of a contractor to a subcontractor’s
injured employee.”); cf. Garvin v. Alumax of South
Carolina, 787 F.2d 910, 918 (4th Cir. 1986) (“Congress has
diligently attempted to preserve state law governance of
state law third party claims by recipients of LHWCA
compensation. Since there is no conflict between differing
rules of immunity and application of South Carolina’s rule
[granting immunity to contractors] will not frustrate the
effectiveness of any federal law . . . the contractor[ ] is
immune from this state tort claim.”). In other words,
because Garris’s son was a harbor worker who happened to
be killed in Virginia’s territorial waters, Garris cannot
recover against Norfolk absent a federal maritime law cause
of action for wrongful death based upon negligence.

We see no reason to deny Garris a basis of recovery
simply because her son was a harbor worker who died in
Virginia, as opposed to another state that permits recovery

As part of this compensation scheme, the LHWCA confers immunity to
an immediate employer from tort suits by injured employees. See id.

'° That is presumably why Garris has sued only Gresham, and not
Norfolk, in state court under the Virginia wrongful-death statute.

Asan. 23

against contractors. First, Congress has not affirmatively
expressed an intent to preclude a_negligence-based
wrongful-death cause of action against a third party. As the
Court noted in Moragne, DOHSA does not preclude a
“nonstatutory federal remed[y] that might be found
appropriate to effectuate the policies of general maritime
law.” Moragne, 398 U.S. at 400. And, like DOHSA, the
LHWCA does not evidence a congressional intent to
preclude a general maritime law cause of action against third
parties for wrongful death based upon negligence.'’

'! The LHWCA generally does not address rights of recovery
against third parties except in one instance: the LHWCA eliminated
unseaworthiness as a cause of action against the vessel with respect to
longshoremen and harbor workers and replaced that cause of action by
permitting longshoremen and harbor workers to bring suit for negligence

“against [the] vessel as a third party.” See 33 U.S.C.A. § 905(b) (West
1986); Miles _v. Apex Marine Corp., 498 U.S. 19, 28 (1990) (“If
Moragne’s widow brought her action today, it would be foreclosed by
statute.”); Garvin v. Alumax of South Carolina, 787 F.2d 910, 917 (4th
Cir. 1986) (“Except with respect to claims against vessels addressed in
33 U.S.C.A. § 905(b), the LHWCA does not address the substantive
rights of claimants against third parties.”).

We recognize that Congress’s removal of the unseaworthiness
cause of action for longshoremen and harbor workers reduced their
overall right of recovery. See Holland v. Sea-Land Serv., Inc., 655
F.2d 556, 558-59 (4th Cir. 1981) (stating that Congress “substantially
limited the right of longshoremen to recover from third parties in tort
actions” by eliminating unseaworthiness as a cause of action, but
“preserve[d] his right under prior law to recover for third party
negligence”). This restriction of rights, however, occurred within the
limited context of unseaworthiness, and for a very specific reason:
““[t}he rationale which justifies holding the vessel absolutely liable to
seamen if the vessel is unseaworthy does not apply with equal force to
longshoremen and other non-seamen working on board a vessel while
it is in port.” Harwood v, Partredereit AF 15.5.81, 944 F.2d 1187,
1198 (4th Cir. 1991) (Ervin, J., dissenting) (quoting H.R. Rep. No.
92-1441, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. &

(continued)

App. 24

Second, recognition of a general maritime law cause of
action for wrongful death based upon negligence
“effectuate[s] the policies of general maritime law” because
it is consistent with the policy of achieving uniformity in
admiralty law. Id. at 400. The location of a harbor worker’s
death -- a fact of true happenstance -- should not determine
an injured party’s ability to recover for wrongful death. !?

Admin. News 4698, 4703). We do not believe that this limited
curtailment of longshoremen and harbor workers’ rights is inconsistent
with our recognition of a general maritime law cause of action against
third parties for wrongful death based upon negligence, nor does it
express an affirmative congressional intent to preclude such a cause of
action. Indeed, the LHWCA expressly leaves intact a longshoreman or
harbor worker’s rights against all other third parties except the
employer and “persons in the same employ.” See 33 U.S.C.A. § 933(i)
(West 1986).

'? Our recognition of a federal cause of action for wrongful death
based upon negligence does not conflict with in v. f
Carolina, 787 F.2d 910 (4th Cir. 1985), in which we held that South

_Carolina’s worker’s compensation statute conferred immunity to a
contractor from an injured longshoreman’s state tort action even though
the injured longshoreman received benefits only under the LHWCA. See
id. at 918. In Garvin, we noted that “[t]he federal immunity rule is to be
applied when a third party claim is a federal claim; when the third party
claim is a state law claim, the immunity rules of that state are to be
applied.” Id. at 917. Because Garvin dealt only with a state claim, and
not a federal claim, Garvin is not inconsistent with our decision in the
present case.

Nor does a negligence-based Moragne cause of action violate
“important federalism principles” by impermissibly interfering with
Virginia’s grant of immunity to Norfolk under state law. (Appellee’s Br.
at 21.) First, the broader Virginia immunity rule would still apply to any
state tort actions brought by Garris. To that extent, a Moragne cause of
action does not interfere with state law at all. Second, although

(continued)

App. 25

Because such a cause of action is consistent with the
framework set forth in Moragne, we hold that a general
maritime law cause of action against third parties for
wrongful death based upon negligence is available where a
harbor worker, such as Garris’s son, dies within state
territorial waters.'? For that reason, we reverse the district

principles and policies.” Yamaha Motor Corp. v. Calhoun, 516 U.S.
199, 215 n.13 (1996). Cf. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406,
409-10 (1953) (“While states may sometimes supplement federal
maritime policies, a state may not deprive a person of any substantial
admiralty rights as defined in controlling acts of Congress or by
interpretive decisions of this Court.”). Accordingly, Norfolk’s federalism
argument does not deter us from recognizing a Moragne cause of action
in this context.

"We recognize that the Supreme Court, in Dooley v. Korean Air
Lines Co., 118 S. Ct. 1890 (1998), declined to extend general maritime
law to permit recovery for pre-death pain and suffering under a general
maritime law survival cause of action. See id. at 1895. In Dooley, the
Court rejected the argument that DOHSA, which does not authorize
recovery for pre-death pain and suffering, did not bar such damages
under general maritime law because DOHSA is a wrongful-death statute
rather than a survival statute. See id. The Court stated that

DOHSA expresses Congress’ judgment that
there should be no such cause of action in cases of
death on the high seas. By authorizing only certain
surviving relatives to recover damages, and by
limiting damages to the pecuniary losses sustained by
those relatives, Congress provided the exclusive
recovery for deaths that occur on the high seas.

Id. at 1894-95. The Court noted that “[bjecause Congress has already
decided these issues, it has precluded the judiciary from enlarging either
the class of beneficiaries or the recoverable damages.” Id, at 1895.
Moreover, “it cannot be contended that DOHSA has no bearing on
survival actions; rather, Congress has simply chosen to adopt a more
limited survival provision.” Id, The Court concluded that “[e]}ven in the
exercise of our admiralty jurisdiction, we will not upset the balance

(continued)

App. 26
OO ——EeEeE_™

court’s dismissal of Garris’s general maritime law
negligence-based claim and remand. for further proceedings
consistent with this opinion.

IV.

In conclusion, the language of Moragne _ v. States
Marine Lines, Inc., 398 U.S. 375 (1970), combined with its

historical and legal context and the absence of persuasive
authority to the contrary, leads us to conclude that Moragne
recognized only a general maritime law cause of action for
wrongful death based upon unseaworthiness and not for
wrongful death based upon negligence. However, because
Congress has not affirmatively precluded a negligence-based
cause of action, and because such a cause of action is
consistent with the principle of uniformity expressed in
Moragne and Miles v. Apex Marine Corp., 498 U.S. 19, 33
(1990) (“Today we restore a uniform rule applicable to all
actions for the wrongful death of a seaman, whether under
DOHSA, the Jones Act, or general maritime law.”), we find
it appropriate to recognize a general maritime law cause of
action for wrongful death based upon negligence.
Accordingly, we reverse the district court’s dismissal of

struck by Congress by authorizing a cause of action with which Congress
was certainly familiar but nonetheless declined to adopt.” Id.

Unlike DOHSA, which addressed the remedy sought by the
petitioners in Dooley, and, therefore, pervaded the field on that issue, the
LHWCA does not address the third party cause of action that Garris
seeks in the present case. In fact, as noted above, the LHWCA addresses
third party rights only in the limited context of eliminating an
unseaworthiness action against the vessel and replacing it with a
negligence action against the vessel. Thus, unlike the Court in Dooley,
we can find no congressional intent that precludes us from recognizing a
Moragne cause of action against third parties other than vessels for

App. 27

Garris’s general maritime law negligence-based claim and
remand for further proceedings.

REVERSED AND REMANDED
HALL, Senior Circuit Judge, concurring in the judgment:

Over the past three decades, Justice Harlan’s opinion
in Moragne v. States Marine Lines, Inc., 398 U.S. 375
(1970), has come to occupy an important place within the
Supreme Court’s canon. Generations of law students have
studied Moragne for its scholarly discussion of legal process
and the role of precedent. But before those students reach
these abstract questions, their professors have no doubt
tormented them by asking a seemingly simple question that
defies a simple answer: What, precisely, is the holding of
Moragne?

I.

The majority, which concludes ii the first instance
that Moragne’s holding is limited to wrongful death
unseaworthiness claims, gives what is in many ways a
reasonable answer to that thorny question -- albeit one with
which I cannot concur. And Part II of the majority opinion
ultimately reaches the sight result by finding a Moragne
cause of action on the instant set of facts. The majority’s
explanation of why congressional silence and Appellant’s
lack of a state-law remedy warrant the creation of a federal
admiralty remedy is particularly laudable. Because I would
hold that Moragne already covers Appellant’s claim, I find it
unnecessary to reach Part III’s analysis. But if I were
inclined to interpret Moragne as narrowly as the majority
does, I would certainly assent to Part III’s sound discussion.
Those words of explanation having” been voiced, I shall
explain why, in my view, Moragne itself created a cause of
action for negligence-based wrongful death.

App. 28

ee

Il.

In The Harrisburg, 119 U.S. 199 (1886), the Supreme
Court held that general maritime law provided no cause of
action for wrongful death. At the time, any successful
wrongful death suit would have required the plaintiff to
prove that the defendant acted negligently, and negligence
was indeed the theory of liability pressed by The Harrisburg
plaintiff and the only theory of negligence considered by the
Supreme Court. See id. at 204.

Fifty-eight years later the Supreme Court recognized,
for the first time, the doctrine of unseaworthiness. See

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944); see also
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 208 (1996)

(“Prior to 1944, unseaworthiness was an obscure and
relatively little used liability standard . . . .”) (internal
quotations marks omitted). In contrast to negligence,
unseaworthiness is a strict liability theory flowing from the
ship’s owner to its crew, longshoreman, or harbor workers

aboard the ship. See Ballwanz v. Isthmian Line , 319 F.2d
457, 461 (4th Cir. 1963).

Twenty-six years after Mahnich, the Supreme Court
decided Moragne, 398 U.S. at 375. In Moragne the plaintiff
was a longshoreman’s widow who brought an
unseaworthiness suit against the owner of a ship on which
her husband had perished. Like Appellant, the Moragne
plaintiff's loved one had been killed while working aboard a
vessel in navigable waters within a state’s territorial waters.
See id. at 376. Although no federal statute authorized
recovery for the widow, the Supreme Court nevertheless
allowed her suit to proceed. In order to do so, the Supreme
Court said it was compelled to overrule The _ Harrisburg,
Stare decisis considerations notwithstanding. In broad
language, Justice Harlan, writing for a unanimous Court,
announced the rule of Moragne: “We accordingly overrule

App. 29

The Harrisburg, and hold that an action does lie under
general maritime law for death caused by violation of
maritime duties.” Id. at 409.

Two aspects of the Moragne opinion are of pivotal
importance in the case at bar. First, the court explicitly
announced that a cause of action exists for a “violation of
maritime duties,” not just for “unseaworthiness.” Had the
Court sought to limit its holding to unseaworthiness, it could
have easily done so. Second, and relatedly, had the
Supreme Court sought only to allow the plaintiff to recover
in her unseaworthiness-based wrongful death action, it could
easily have distinguished The Harrisburg. After all, The
Harrisburg held that there was no general- maritime law
cause of action for negligence-based wrongful death suits,
but The Harrisburg said nothing about the presence or
absence of a general maritime law cause of action for
unseaworthiness-based wrongful death suits, since the
unseaworthiness theory of liability did not enter the
Supreme Court’s lexicon until fifty-eight years after The
Harrisburg was handed down. But the Supreme Court
consciously, and with much fanfare,' overruled The

\

' Justice Harlan’s opinion in Moragne devotes seven fascinating
pages to the “very weighty considerations” of stare decisis that argued
against overruling The Harrisburg. See Moragne , 398 U.S. at 403-09.
Anyone who reads this discussion comes away from it profoundly
impressed with Justice Harlan’s reverence for precedent and his
reluctance to cast aside a controlling precedent in the absence of
compelling reasons to do so. Indeed, scholars have long appreciated
Justice. Harlan’s meee pee reverence ps precedent, see, ¢.2.,

4 Bi arlan, 91 Mich. -

Haran reat ages of judicial restraint, see, e.g., Stephen M.

Dane, “Onired Liberty” and Seif Restraint: The Judicial Philosophy of

the Second Justice Harlan, 51 U. Cin. L. Rev. 545 (1982).

7 (continued)
App. 30

renaencre racisaeirss BON try dicen otra manatee ed

Harrisburg instead of distinguishing it? In so doing, the
Court must have believed that there was no principled basis

The majority today reads Moragne as having created a cause of
action for unseaworthiness-based wrongful death suits, but not
negligence-based wrongful death suits. Plainly, however, if the
Moragne Court had favored such a distinction, Justice Harlan could
have simply distinguished i by noting that it involved a
negligence-based wrongful death cause of action, whereas Moragne
involved an unseaworthiness-based wrongful death cause of action.
By doing so, the Court could have avoided the unseemliness involved
in overturning a well-established precedent. Two possibilities follow
from the majority’s holding today: Either Moragne’s overruling of
The Harrisburg was mere dicta or Justice Harlan and his eight
colleagues lacked the capacity to distinguish a case on its facts. I find
neither notion plausible. A more satisfying reading of Moragne’s
treatment of The Harrisburg is that the unanimous Court felt compelled
to overrule The Harrisburg’s holding that general maritime law did not
create a negligence-based wrongful death cause of action, and that the
Court saw no logical basis for holding that general maritime law
recognizes unseaworthiness-based wrongful death suits, but not

negligence-based wrongful death suits.

* The majority contends that Moragne had to overrule The
Harrisburg because The Harrisburg’s “rationale was applicable to all
forms. of wrongful death.” Maj. op. at 15 n.7. In so doing, the majority
emphasizes The Harrisburg’s reliance on Insurance Co. v. Brame, 95
U.S. 754 (1877), which held that under the common law, “actions for
injuries to the person abate by death,” see id. at 759. I fail to see why
Brame alters the analysis. At the time of The Harrisburg, the common
law recognized no wrongful death cause of action. Among the possible
theories of liability, the only candidate for a wrongful death recovery
action would have been negligence because, as I noted above, the
strict-liability theory of wrongful death recovery would not make its way
into American admiralty jurisprudence for another fifty-eight years. It is
therefore not surprising that The Harrisburg Court considered the
question before it in the narrowest of terms: “Can a suit in admiralty be
maintained in the courts of the United States to recover damages for the
death of a human being on the high seas, or waters navigable from the
sea, caused by negligence, in the absence of an act of congress or a
Statute of a state giving a right of action therefor?” 119 U.S. at 204

(continued)

App. 31

for distinguishing between negligence-based wrongful death
suits and unseaworthiness-based wrongful death suits under
general maritime law. Yet that is precisely the distinction
that the majority draws today. In order to fully understand
Moragne, courts have often looked to the three famous
“anomalies” that The Harrisburg and pre-Moragne
developments had wrought. See, e.g., Miller v. American

President Lines, 989 F.2d 1450, 1458 (6th Cir. 1993);
Bodden v. American Offshore, Inc., 681 F.2d 319, 323 (Sth

Cir. 1982). The Moragne Court was terribly troubled by
these inconsistencies that had emerged ii admiralty law,
whereby a seaman might recover damages if injured within
territorial waters, but not if killed within those same waters;
whereby a seaman’s estate could recover in an
unseaworthiness action if he was killed on the high seas but
not if killed within a state’s territorial waters; and whereby a
seaman’s estate could not recover for wrongful death if he
were killed within territorial waters, but a longshoreman’s
estate could. See id. at 395-96. By overruling The
Harrisburg and removing these anomalies, the Court saw
itself as assuring “uniform vindication of federal policies
[by] removing the tensions and discrepancies that have
resulted from the necessity to accommodate state remedial
statutes to exclusively maritime substantive concepts.” Id.
at 401.

The majority concludes that Moragne’s three
anomalies are not directly implicated by the instant case. |
disagree. The purpose of Moragne was to allow
individuals who are, for all intents and purposes, equally
situated, to obtain equal recoveries in the event of their

(emphasis added). Thus, the majority’s view appears to be that the

Moragne Court read The Harrisburg to preclude a cause of action that
had not yet been invented.

App. 32

iy ceeeersseesae eee eer sane enone can ween

deaths. In other words, happenstance should not determine
whether an individual’s heirs have a cause of action in the
event of his untimely death. But, as the majority points
out, Appellant’s misfortune here is purely driven by
happenstance. M4j. op. at 17-19. Had Garris been a
seaman, Appellant would have had a wrongful death cause
of action under the Jones Act or general maritime law. But
because Garris was a longshoreman, the Jones Act is
inapplicable, and Appellant is now unable to |*rig any suit
under general maritime law.. Had Garris’s death resulted
from the actions of the ship’s owner, Appellant could have
recovered under the Longshore & Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 905(b). But
because his death allegedly resulted from the actions of
subcontractors working aboard the ship, such a remedy is
not available to Appellant. I am hardly alone in
understanding Moragne’s anomalies to be directly
implicated by the set of facts presented in the instant case.
To Grant Gilmore and Charles Black, two of. their
generation’s towering legal minds, it “clearly follow[ed}”
from Moragne that “The Moragne remedy . . . . provides
recovery for deaths caused by negligence as well as for
deaths caused by unseaworthiness.” Grant Gilmore &

Charles L. Black, Jr. The Law of Admiralty 368 (2d ed.

1974).

In 1980, a Ninth Circuit opinion cited page 368 of the
Gilmore and Black treatise and largely agreed with those
scholars’ reading of Moragne. v. Uni ‘
639 F.2d 469, 473 (9th Cir. 1980). While observing that no
post-Moragne published opinion had decided whether a
Moragne suit “could be based on negligence as well as
unseaworthiness,” the court expressed sympathy for
Gilmore and Black’s view that the obvious implication of
Moragne was that negligence suits were covered under the
general maritime law. The Court held that the “need for

App. 33

uniformity in maritime wrongful death actions requires
extension of Moragne to cover claims based on negligence,
to the exclusion of state wrongful death statutes.” Id. The
majority reads Nelson as recognizing “that Moragne did not
itself create a general maritime law cause of action for
wrongful death based upon negligence.” Maj. op. at 13.
Although the question is admittedly close, I read no such
analysis into Nelson, and believe the majority places too
much emphasis on Nelson’s use of the word “extension.”
Indeed, Nelson’s invocation of page 368 of Gilmore and
Black suggests a contrary view.

As the majority recognizes, the Second Circuit has
also held that Moragne created a negligence-based cause of
action as well as an unseaworthiness-based cause of action.
See Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084 (2d
Cir. 1993). The Second Circuit correctly held that the
Moragne Court “did not limit the new right of recovery to
unseaworthiness claims, but instead established a general
remedy for wrongful death under maritime law.” Id. at
1088-89. The majority’s assertion that no court has adopted
Wahlstrom’s reasoning is misleading. Wahlstrom is
consistent with Nelson, and-Wahlstrom was the last circuit
court case to consider the issue that is before this Court
today.

> When an opinion is obviously applicable to a nearly identical set
of facts, it is nevertheless accurate to say that the opinion still must be
“extended” to cover the second set of facts. Sometimes, a minimal
extension of the prior precedent to a situation clearly controlled by that
precedent even warrants the publication of a subsequent opinion. See,
¢.g., Boulahanis v. Board of Regents, 198 F.3d 633 (7th Cir. 1999)

(extending Kelley v. Board of Trustees, 35 F.3d 265 (7th Cix. 1994),
while recognizing that Kelley plainly controlled the case at bar).

App. 34

Lk, Men SR

The majority seeks solace in an Eleventh Circuit case,
but that reliance is somewhat misplaced. Admittedly, the
Eleventh Circuit has held that Moragne does not create a
negligence-based wrongful death cause of action “where a
cause of action exists for wrongful death under DOHSA [the
Death on the High Seas Act].” Ford vy. Wooten, 681 F.2d
712, 716 (11th Cir. 1982). But it is undisputed that
Appellant has no DOHSA remedy here, because Garris’s
injury occurred in territorial waters. In Ford, the Eleventh
Circuit premised its opinion upon a balancing of interests
where the interest in uniformity favored granting a remedy
and “consistency with federal remedial schemes” favored
withholding a remedy. The court held that “{ajt least where
statutory remedies exist, we deem consistency with the
federal remedial schemes to be more important than the
somewhat limited loss of uniformity.” Id. (emphasis added).
Notably, a general maritime law cause of action would have
conflicted with DOHSA because DOHSA “already provides
a cause of action for death due to negligence.” Id. Where,
as in the case at bar, no federal statute authorizes or bars a
recovery from the third party alleged to have caused Garris’s
death, there is nothing to balance the interest in uniformity,
so Moragne creates a cause of action.‘

* Both parties invoke the Fifth Circuit's precedents as supporting
their respective readings of Moragne. Surprisingly, both parties appear
to be correct. In Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 527
(Sth Cir. 1979) (en banc), the Fifth Circuit held:

Other reasons, somewhat more complex,

appear to preclude interpreting the Jones Act as

being supplemented by a Moragne-engendered

negligence action for damages if (but only if) death

occurs in territorial waters or on land. Moragne did

not create or even discuss an action for negligence; it
(continued)

App. 35

Any lingering doubts about whether Moragne created
a negligence-based wrongful death cause of action were
laid to rest by the Supreme Court in 1996. In Yamaha
Motor Corp., 516 U.S. at 199, the Court held that Moragne |
did not preempt state law remedies for wrongful death
resulting from injuries to nonseamen in territorial waters.
But it is one of Yamaha’s footnotes, not its holding, that

dealt only with death occasioned by
unseaworthiness. The suggestion that the Jones Act
measure of damages can be supplemented by the
Moragne-cause-of-action-Gaudet-damages rule will
not bear analysis . . . .

A decade later, the Fifth Circuit appears to have reversed course,
observing that in “Moragne, the Supreme Court recognized a wrongful
death action for negligence and unseaworthiness under the general
maritime law.” Miles v. Melrose, 882 F.2d 976, 985 (Sth Cir. 1989),
aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
Ordinarily, an en banc opinion would trump a panel opinion, but that
might not be the case where, as here, the panel opinion post-dates the
en banc opinion or where, as here, only the panel opinion was affirmed
by the Supreme Court. The Fifth Circuit thus appears to find itself on
both sides of a circuit split.

Nevertheless, the majority opinion cites Ivy as the current Fifth
Circuit law. Maj. op. at 13. Assuming, arguendo, the correctness of
that assessment, I would emphasize that Ivy's holding is inapplicable
to the case at bar. The Ivy court’s analysis was animated by the
problem of double recoveries for someone under Moragne and the
Jones Act. Appellant, and those similarly situated, are not eligible for
such a double recovery, since the Jones Act covers seamen, but not
longshoremen. The Longshore & Harbor Workers’ Compensation Act
(LHWCA), which covers Garris, does not provide for a wrongful death
cause of action against a subcontractor. Hence, there is no risk that
Appellant might recover twice, unless one construes funeral benefits
from an employer and wrongful death benefits from a third-party
subcontractor to be a double recovery.

App. 36

definitively resolves the instant case. Footnote 11 reads in
pertinent part:

While unseaworthiness was the
doctrine immediately at stake in Moragne,
the right of action, as stated in the Court’s
opinion, is “for death caused by violation of
maritime duties.” . . . See . . . Kermarec, 358
US., at 630, 79 S.Ct, at 409-410
(negligence). See also G. Gilmore & C.

Black, The Law of Admiralty 368 (2d ed.
1975).

Id. at 214n.11. This footnote is a crucial clue for at least
two reasons. First, the Court emphasized that the Moragne
cause of action covered something in addition to
unseaworthiness causes of action, and the citation to
Kermarec v. Compagnie Generale Transatlantique, 358 U.S.
625, 630 (1959), makes it rather clear that negligence causes
of action for wrongful death were part of that “something”
encompassed by the broader language “violation of
maritime duties.” See Steven F. Friedell, Searching for a
Compass: Federal and State Law Making Authority in
Admiralty, 57 La. L. Rev. 825, 835 (1997) (“{T]he holding
in Moragne was not limited to unseaworthiness. The Court
held that ‘an action does lie under general maritime law for
death caused by violation of maritime duties.’ As
recognized by the Yamaha Court, this encompasses not only
unseaworthiness but also products liability

and negligence.”).

Second, and perhaps even more importantly, the
Supreme Court cited favorably to the aforementioned page
368 of the Gilmore and Black treatise, where the authors
concluded that the Moragne remedy “provides recovery for
deaths caused by negligence as well as for deaths caused by

—————————

unseaworthiness.” Gilmore & Black, supra, at 368. This
citation, combined with the text of footnote 11 and the
citation to Kermarec, make it clear that the Yamaha Court
understood Moragne’s remedy as encompassing claims like
Appellant’s. Although footnote 11 is dicta, it deserves
special solace from this Court because it clarifies the
Supreme Court’s understanding of one of its own opinions.
See United States v. City of Hialeah, 140 F.3d 968, 974
(11th Cir. 1998) (“Even though that statement by the
Supreme Court in Local 93 was dictum, it is of considerable
persuasive value, especially because it interprets the Court’s
own precedent.”).

Ill.

Ultimately, the agreement between my view and the
majority’s is far more important than our points of
contention. It goes without saying that Appellant has a
cause of action under either reading of Moragne. I write
separately to emphasize that in my view Appellant’s cause
of action is not a new ship that has suddenly appeared on
the horizon. Rather, Appellant’s cause of action has been
lurking just under the surface for quite some time. For the
foregoing reasons, I concur in the judgment.

FILED: June 1, 2000
DISSENT FILED: June 2, 2000

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 98-2368
(CA-98-382-2)

CELESTINE GARRIS, Administrator of the
estate of Christopher Garris, deceased,

Plaintiff - Appellant,
versus

NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,

Defendant - Appellee,

4

and
E. T. GRESHAM, INCORPORATED,
Defendant.

ON PETITION FOR REHEARING EN BANC

Appellees filed a petition for rehearing en banc.

A member of the Court requested a poll on the
petition for rehearing en banc. The poll failed to produce a

App. 39

majority of judges in active service in favor of rehearing en
banc. Judges Widener and Niemeyer voted to rehear the
case en banc. Chief Judge Wilkinson and Judges
Murnaghan, Wilkins, Luttig, Williams, Michael, Motz,
Traxler, and King voted against rehearing en banc.

The Court denies the petition for rehearing en banc.

Entered at the direction of Judge Williams for the
Court.

For the Court

/s/ Patricia S. Connor
Clerk

WIDENER, Circuit Judge, dissenting:

I respectfully dissent to the denial of reharing en banc

in this case. I would grant rehearing en banc in this case of
first impression.

The panel opinion relies almost exclusively on the
opinion in Moragne v. States Marine Lin es, Inc., 398 U.S.
3u75_ (1970). In Moragne, the Court addressed

iscrepancies “between the remedies for deaths covered by
the Death on the High Seas Act and for deaths that happen
to fall within a state wrongful death statute not
, €ncompassing unseaworthiness.. . .” 398 U.S. at 399.
Finding that Congress could not have foreseen these
discrepancies, the Court concluded that the Death on the
High Seas Act did not foreclose any nonstatutory federal
remedies that would effectuate the policies of general
maritime law. Moragne, 398 U.S. at 399-400.

With respect to longshoremen and other harbor
workers, the Moragne Court found that a claim for
wrongful death based upon the unseaworthiness of a vessel
was viable because the unseaworthiness doctrine had been
extended to longshoremen as the principal vehicle for
recovery of injury or death while performing work on a
vessel, Moragne, 398 U.S. at 399, on the authority of Seas
Shipping Co. v. Sieracki, 328 U.S. 85 (1946). Sieracki
extended to land-based stevedores the right given by
maritime law to seamen to recover against the ship owner,
without the need of proving negligence, for injuries caused
by the unseaworthiness of the vessel. Following Sieracki,
courts made awards to longshoremen on the basis of
unseaworthiness. And, as noted, the Moragne Court
specifically relied on the Sieracki decision to extend the

App. 41

In 1972, Congress enacted various amendments to the
Longshore and Harbor Workers’ Compensation Act. As
part of these amendments, Congress added 33 U.S.C.
§ 905(b), which specifically eliminates the right of
longshoremen and harbor workers to recover against the
vessel on the basis of unseaworthiness. See Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156, 165
(1981) (longshoreman’s fight to recover for
unseaworthiness abolished); Herbert R. Baer, Admiralty
Law of the Supreme Court § 6-17 at 90-91 (2d ed. Supp.
1977). The legislative history mentions Sieracki by name
and rejects the holding of that case to the extend that it
created - an absolute duty of seaworthiness to
“longshoremen and others who performed work on the
vessel.” H.R. Robert E. Payne. No. 92-1441 (1972),
reprinted in 1972 U.S.C.C.A.N. 4698, 4702. Thus,
because Moragne relies on Sieracki to extend a wrongful
death action based on unseaworthiness to longshoremen
and harbor workers, to the extend of that reliance Moragne
was superceded and reversed by the 1972 amendments to
the act. Thus, the panel opinion’s reliance on this portion
of Moragne is misplaced.

The legislative history of the 1972 amendments to the
Act are particularly relevant to our decision in this case. It
is clear from this history that Congress intended to “place
an employee injured aboard a vessel in the same position
he would be if he were injured in non-maritime
employment ashore, insofar as bringing a third party
damage action is concerned, and not to endow him with
any special maritime theory of liability or cause of action
under whatever judicial nomenclature it may be called,

App. 42

such as “unseaworthiness’ , ‘non-delegable duty’, or the
like.” 1972 U.S.C.C.A.N. 4698, 4703.

In spite of this explicit expression of Congressional
intent, the panel opinion creates a new cause of action
which is exactly the Opposite of that which Congress
intended. First, the decision creates a “special maritime
theory of liability’ — one for wrongful death based on
negligence. Second, the decision gives an employee
injured aboard a vessel a cause of action that a Virginia
worker on shore would not have.

In a case such as this in which Congress has made its
intention explicit, | Suggest it is beyond our warrant to
substitute our notions of public policy for that of Congress.
Local 1976, United Bhd. of cL and - Joiners _v.
N.L.R.B., 357 U.S. 93, 100 (1958) (“[I}t is the business of
Congress to declare policy and not this Court’s. The
judicial function is confined to applying what Congress
has enacted after ascertaining what it is that Congress has
enacted.”) “Whether the federal policy is a wise one is for
the Congress and the Chief Executive to determine. Once
they have spoken, it is our function to enforce their will.”

ited States v. ia ' . Comm’n, 371 U.S.
285, 293 (1965). me

‘ As Scindia points out both the Senate and House Committee
Reports agree on this language. Scindia, 451 U.S. at 165-166 n.13.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CELESTINE GARRIS,
Administratrix of the ESTATE OF
CHRISTOPHER GARRIS, deceased,

Plaintiff,
Civil Action No. 2:97-

v.
cv-382

NORFOLK SHIPBUILDING &
DRYDOCK CORPORATION,
and

E.T. GRESHAM, INC.,

Defendants.
OPINION AND FINAL ORDER

This matter comes before the Court on Defendants’
Motions to Dismiss for Failure to State a Claim. For the
reasons stated below, the Court finds that no cause of
action exists, under general maritime law, for death of a
nonseaman in state territorial waters resulting from
negligence. Defendants’ motions to dismiss are
GRANTED, and Plaintiffs federal claims are
DISMISSED with prejudice. The Court declines to
exercise supplemental jurisdiction under Title 28, United
States Code Sections 1367(a) and (c)(3) over Plaintiff's
Virginia Wrongful Death Act claim; the state claim is
therefore DISMISSED without prejudice.

Ann 44

I. Factual Background

Celestine Garris, as Administratrix of the Estate of
Christopher Garris, seeks damages relating to the death of
Christopher Garris. Plaintiff's claims are brought under
both general maritime law and the Virginia Wrongful
Death Act. While the parties do not agree on the actual
series of events which led to the death of Christopher
Garris, those factual discrepancies need not be resolved for
purposes of ruling on Defendants’ motions.

According to the Plaintiff, on April 8, 1997, the
decedent was performing sandblasting work on the USNS
MAJOR STEPHEN W. PLEss for Mid-Atlantic Coatings, Inc.
(“Mid-Atlantic”) through a temporary agency. Norfolk
Shipbuilding & Drydock Company (“NORSHIPCO”), a
ship repair company who had contracted to perform work
on the vessel, sub-contracted the sandblasting work to
Mid-Atlantic. To accomplish the sand-blasting, a pre-
loaded hopper of sandblast shot was lifted from the pier to
the opening of a silo located on the deck of the vessel. A
door on the underside of the hopper was then opened to
release the shot, depositing the shot in the opening of the
silo. The particular silo in question was approximately 30
feet in height. Christopher Garris fell from the top of the
silo onto the deck of the vessel, sustaining fatal injuries in
the fall. Garris passed away on April 9, 1997.! The USNS

' The Plaintiff received death benefits under the Longshore and
Harbor Workers’ Compensation Act, and filed suit in state court seeking
additional recovery. Under Virginia law, no general maritime cause of
action exists for negligence for the death of a nonseaman in state
territorial waters. See, ¢.g., Brown v. Brown, 226 Va. 320, 327, 309
S.E.2d 586, 590 (1983). Plaintiff nonsuited the state court action
following the filing of a demurrer and miscellaneous other motions by
Defendants. The instant action was filed shortly thereafter.

App. 45 .

MAJOR STEPHEN W. PLESS was docked in Norfolk,
Virginia, in the navigable waters of the United States of
America at the time of the incident.

Plaintiff seeks damages under general maritime law
for funeral expenses, pain and suffering of the decedent,
loss of society, and loss of services. In a pendant state
claim, Plaintiff seeks damages pursuant to the Virginia
Wrongful Death Act.

Il. Analysis
A. Standard of Review

In a Motion to Dismiss, the complaint is construed in
the light most favorable to the plaintiff, and the plaintiff's
allegations are taken as true. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Jenkins v. McKeither, 395 U.S. 411,421
(1969). Nonetheless, the Fourth Circuit has held that
“(cjonclusory allegations regarding the legal effect of the
facts alleged” need not be accepted as true. Labram v.
Havel, 43 F.3d 918, 921 (4th Cir. 1995). In order for the
Court to grant a motion to dismiss, it must appear to a
certainty that the plaintiff cannot prove any facts in support
of his claim which would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); in Marietta Corp.

V. International Telecommunications Satellite Org., 991
F.2d 94, 97 (4th Cir. 1993).

B. Negligence Action Under General Maritime
Law

The sole issue before this Court is whether Plaintiff
may properly maintain a negligence action under general
maritime law. The Supreme Court first recognized a
general maritime law cause of action for death occurring
from a breach of maritime duties in Moragne v. States

App. 46

Marine Lines, Inc., 398 U.S. 375 (1970). Plaintiff argues
that in the Moragne decision, the Supreme Court intended

to establish the propriety of both unseaworthiness and
negligence claims under general maritime law. Defendants
submit that the Supreme Court’s recognition in Moragne
was limited to unseaworthiness claims, and that general
maritime law has not been extended to include a
negligence cause of action for the wrongful death of a
nonseaman in state territorial waters. See Ford v. Wooten,
681 F.2d 712, 715 (11th Cir. 1982) (Hoffman, District
Judge sitting by designation) (recognizing Moragne
“pertained only to an unseaworthiness claim”); Minnick v.
United States, 767 F.Supp. 115, 118-119 (E.D. Va. 1990)
(noting “Moragne created a general maritime wrongful
death cause of action for unseaworthiness”).

. The Moragne decision was a necessary reaction to an
antiquated common law holding. In rendering the decision
it did, the Supreme Court filled an obvious void that
materialized following the enactment of the Death on the
High Seas Act and the Jones Act. Prior to Moragne. no
federal cause of action existed for wrongful death in state
territoriai waters due to unseaworthiness. The Supreme
Court has never applied its holding in Moragne to
negligence claims, although some jurisdictions have
expanded the decision to allow negligence actions under
general maritime law, or otherwise held the decision
intended to provide a general maritime law action for both

~—unseaworthiness and negligence. See, e.g., Nelson v.
United States, 639 F.2d 469, 473 (9th Cir. 1980) (holding
the need for uniformity requires extension of Moragne to
negligence claims); Miles v. Melrose, 882 F.2d 976 (5th
Cir. 1989) (noting, without citation, that Moragne
recognized actions for both vunseaworthiness and
negligence.); Neil v. McGinnis, 716 F.Supp. 996 (E.D. Ky.
1989); Garner v..Dravo Basic Materials, 768 F.Supp. 192

App. 47

(S.D. W.Va. 1991); Cantore v. Blue Lagoon Water Sports,
Inc., 799 F.Supp. 1151 (S.D. Fla. 1992); but see generally

Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (Sth Cir.
1979).

The 1972 amendments to the Longshore and Harbor
Workers’ Compensation Act superseded the holding in
Moragne, foreclosing a general maritime law wrongful
death action by the survivors of a longshoreman or harbor
worker. See 33 U.S.C. §§ 901-950; Miles v. Apex Marine,
498 U.S. 19, 28 (1990). Defendants submit that this
responsive legislative action cautions against the extension
of Moragne beyond unseaworthiness, an argument with
which the Court is inclined to agree. The Court, however,
must also take into consideration the Supreme Court’s
more recent decision in Yamaha Motor Corporation v.
Calhoun, 516 U.S. 199 (1996), as well as decisions
previously rendered by other judges of this district.

In Minnick v. United States, supra, the parties

assumed a negligence action could be pursued under
general maritime law. Judge Clarke, in reviewing
Moragne and the cases interpreting Moragne, found the
assumption to be incorrect, noting that Moragne created
only a general maritime wrongful death cause of action for
unseaworthiness. Minnick, 767 F.Supp. at 117-18.
Similarly, Judge Hoffman, sitting on the-Eleventh Circuit
by designation, considered “whether Moragne should be
extended to permit recovery under general maritime law
for wrongful death caused by negligence. Ford, 681 F.2d
at 716. Judge Hoffman, writing for a panel of the Eleventh

2 Judge Clarke further found that the plaintiff in Minnick could
pursue a negligence action under LHWCA, allowing the plaintiff leave to
amend to assert the appropriate claim. Minnick, at 117-18.

. App. 48

Circuit, held that Moragne _ pertained only to
unseaworthiness claims, and that subsequent Supreme
Court decisions supported this finding. Id. at 715.
Although the decisions in Minnick and Ford predated the
Supreme Court’s opinion in Yamaha, the Court finds the
reasoning of Judges Hoffman and Clarke in those
decisions remains sound.

Yamaha held the general maritime wrongful death
action recognized in Moragne did not preempt state
remedies for non-seaman deaths in territorial waters. Id. at
215. In rendering this decision, the Supreme Court created
some confusion regarding the current status of the law.
The Court noted in footnote seven, that:

If Moragne’s wrongful death action did
not extend to non-seafarers like Natalie
[injured in a jet ski accident], one could
hardly argue that Moragne displaced the
State law remedies the Calhouns seek.
Lower courts have held that Moragne’s
wrongful death action extends to non-
seafarers. (Citations omitted). We assume,
for purposes of this decision, the
correctness of that position. Similarly, as in
prior encounters, we assume without
deciding that Moragne also provides a
survival action. [Citation omitted.] The
question we confront is not what Moragne
added to the remedial arsenal in maritime
cases, but what, if anything, it removed
from admiralty’s stock. [Emphasis added.]

Yamaha, 516 U.S. at 209, n. 7. Plaintiff also relies on
footnote eleven in an attempt to persuade the Court that
Moragne recognized negligence claims under general

App. 49

maritime law in addition to unseaworthiness claims. In
footnote eleven, Yamaha correctly notes that the right of
action, as stated in Moragne, established a cause of action
“for death caused by violations of maritime duties.” Id. at
214, n. 11. Nonetheless, unseaworthiness was the doctrine
at stake before the Court in Moragne, not negligence. A
thorough analysis of Yamaha reveals that in Yamaha, the
Supreme Court reserved the issue of whether a wrongful
death action sounding in negligence exists under general
maritime law.°

The generality with which the Court spoke in
Moragne is not sufficient tc establish a general maritime
law cause of action for negligence in light of Yamaha’s
reservation of the issue, and the absence of any Supreme
Court decision applying Moragne to negligence. Neither
the arguments nor the case law set forth by Plaintiff are
persuasive in her attempt to have this Court extend the
application of general maritime law to negligence actions.

Ill. Conclusion

Accordingly, Defendants’ Motions to Dismiss are
GRANTED and Plaintiff's claims under general maritime
law are DISMISSED with prejudice. The Court declines
to exercise supplemental jurisdiction over Plaintiff's
pendant state law claims, and the same are DISMISSED
without prejudice.

> Defendants also offer authority from the Virginia Supreme Court,
in which the Court recognized that claims under general maritime law
were restricted to claims of unseaworthiness. See Brown v. Brown, 226
Va. 320 (1983).

App. 50

The Clerk is REQUESTED to send a copy of this

Opinion and Order to counsel for the Plaintiff and counsel
for the Defendant.

It is so ORDERED.

/s/ Jerome B. Friedman

United States District Judge

August 31, 1998
Norfolk, Virginia

App. 51

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CELESTINE GARRIS. Administratrix
of the ESTATE OF CHRISTOPHER
GARRIS, deceased.

Plaintiff,

V. CIVIL ACTION NO. 2:97-CV-
382

NORFOLK SHIPBUILDING &

DRYDOCK CORPORATION,

and

E. T. GRESHAM, .INC.,

Defendants.

COMPLAINT

NOW COMES the plaintiff, Celeste Garmis,
Administratrix of the Estate of Christopher Garris,
deceased, by counsel, and for her Complaint, states as
follows:

A This is a maritime and admiralty action within
~the meaning of Rule 9(h) and 28 U.S.C. § 1333.

2. The plaintiff is the mother of, and
Administratix of the Estate of Christopher Garris,
deceased, who sustained fatal injuries on April 8, 1997,
while working aboard the USNS MAJ. STEPHEN W.
PLESS, while the vessel was berthed at Norfolk
Shipbuilding & Drydock Corporation (“NORSHIPCO”),

App. 52

Norfolk, Virginia, in the navigable waters of the United
States of America.

3. The plaintiff believes that the plaintiff's
deceased was employed by Tidewater Temps, Inc.
(“Tidewater”} to perform sand blasting work for Mid-
Atlantic Coatings, Inc. (“Mid. Atlantic”), a sub-contractor
of NORSHIPCO.

4. The defendant, NORSHIPCO. is a ship repair
company who had contracted to perform certain work on
the USNS MAJ. STEPHEN W. PLESS.

5. The defendant, E. T. Gresham, Inc.
(“Gresham”), was a sub-contractor of either Mid-Atlantic
or NORSHIPCO, and had responsibilities with regard to
the provision of and/or operation of a crane alongside the
USNS MAJ. STEPHEN W. PLESS.

6. On April 8, 1997, while working aboard the
USNS MAJ. STEPHEN W. PLESS, the plaintiff's
deceased sustained injuries and died on April 9, 1997, as a
result of the negligence of the defendants, jointly and
severally.

A The plaintiff demands damages pursuant to the
general maritime law for funeral expenses, pain and
suffering of the decedent prior to his death, loss of society
- and loss of services, and for damages pursuant to the.
Virginia Wrongful Death Act, § 8.01-52.

WHEREFORE, the plaintiff prays for judgment

against the defendants, jointly and severally, in the amount
of Two Million and 00/100 Dollars ($2,000,000.00).

App. 53

CELESTINE. GARRIS.
Administratrix

of the ESTATE OF
CHRISTOPHER
GARRIS, deceased

/s/ John R. Crumpler, Jr.
By

App. 54

The Longshore and Harbor Workers Compensation
Act, 33 U.S.C.A. §§ 903(a), 904, 905(a)-(b), 909 (West
1986).

§ 903. Coverage.

(a) Disability or death; injuries occurring upon
navigable waters of United States. Except as otherwise
provided in this section, compensation shall be payable
under this chapter in respect of disability or death of an
employee, but only if the disability or death results from an
injury occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining
area customarily used by an employer in loading,
unloading, repairing, dismantling, or building a vessel).

§ 904. Liability for compensation.

(a) Every employer shall be liable for and shall secure
the payment to his employees of the compensation payable
under sections 907, 908, and 909 of this title. In the case of
an employer who is a subcontractor, only if such
subcontractor fails to secure the payment of compensation
shall the contractor be liable for and be required to secure
the payment of compensation. A subcontractor shall not
be deemed to have failed to secure the payment of
compensation if the contractor has provided insurance for
such compensation for the benefit of the subcontractor.

(b) Compensation shall be payable irrespective of fault
as a cause for the injury.

§ 905. Exclusiveness of liability.

(a) Employer liability; failure of employer to secure
payment of compensation. The liability of an employer

App. 55

prescribed in section 904 of this title shall be exclusive and
in place of all other liability of such employer to the
employee, his legal representative, husband or wife,
parents, dependents, next of kin, and anyone otherwise
entitled to recover damages from such employer at law or
in admiralty on account of such injury or death, except that
if an employer fails to secure payment of compensation as
required by this chapter, an injured employee, or his legal
representative in case death results from the injury, may
elect to claim compensation under the chapter, or to
maintain an action at law or.in admiralty for damages on
account of such injury or death. In such action the
defendant may not plead as a defense that the injury was
caused by the negligence of a fellow servant, or that the
employee assumed the risk of his employment, or that the
injury was due to the contributory negligence of the
employee. For purposes of this subsection, a contractor
shall be deemed the employer of a subcontractor’s
employees only if the subcontractor fails to secure the
payment of compensation as required by section 904 of
i this title.

(b) Negligence of vessel. In the event of injury to a
person covered under this chapter caused by the negligence
of a vessel, then such person, or anyone otherwise entitled
to recover damages by reason thereof, may bring an action
against such vessel as a third party in accordance with the
provisions of section 933 of this title, and the employer
shall not be liable to the vessel for such damages directly
or indirectly and any agreements or warranties to the
contrary shall be void. If such person was employed by the
vessel to provide stevedoring services, no such action shall
be permitted if the injury was caused by the negligence of
persons engaged in providing stevedoring services to the
vessel. If such person was employed to provide
shipbuilding, repairing, or breaking services and such

App. 56
OOO) Ee

person’s employer was the owner, owner pro hac vice,
agent, operator, or charterer of the vessel, no such action
shall be permitted, in whole or in part or directly or
indirectly, against the injured person’s employer (in any
capacity, including as the vessel’s owner, owner pro hac
vice, agent, operator, or charterer) or against the employees
of the employer. The liability of the vessel under this
subsection shall not be based upon the warranty of
seaworthiness or a breach thereof at the time the injury
occurred. The remedy provided in this subsection shall be
exclusive of all other remedies against the vessel except
remedies available under this chapter.

§ 909. Compensation for death.

If the injury causes death, the compensation therefore
shall be known as a death benefit and shall be payable in
the amount and to or for the benefit of the persons
following:

(a) Reasonable funeral expenses not exceeding $3,000.

(b) If there be a widow or widower and no child of the
deceased, to such widow or widower 50 per centum of the
average wages of the deceased, during widowhood, or
dependent widowerhood, with two years’ compensation in
one sum upon remarriage; and if there be a surviving child
or children of the deceased, the additional amount of 16
2/3 per centum of such wages for each such child; in case
of the death or remarriage of such widow or widower, if
there be one surviving child of the deceased employee,
such child shall have his compensation increased to 50 per
centum of such wages, and if there be more than one
surviving child of the deceased employee, to such children,
in equal parts, 50 per centum of such wages increased by
16 2/3 per centum of such wages for each child in excess
of one: Provided, That the total amount payable shall in

App. 57

no case exceed 66 2/3 per centum of such wages. The
deputy commissioner having jurisdiction over the claim
may, in his discretion, require the appointment of a
guardian for the purpose of receiving the compensation of
a minor child. In the absence of such a requirement the
appointment of a guardian for such purposes shall not be

necessary.

(c) If there be one surviving child of the deceased, but
no widow or widower, then for the support of such child
50 per centum of the wages of the deceased; and if there be
more than one surviving child of the deceased, but no
widow or dependent husband, then for the support of such
children, in equal parts 50 per centum of such wages
increased by 16 2/3 per centum of such wages for each
child in excess of one: Provided, That the total amount
payable shall in no case exceed 66 2/3 per centum of such
wages.

(d) If there be no surviving wife or husband or child, or
if the amount payable to a surviving wife or husband and
to children shall be less in the aggregate than 66 2/3 per
centum of the average wages of the deceased; then for the
support of grandchildren or brothers and sisters, if
dependent upon the deceased at the time of the injury, and
any other persons who satisfy the definition of the term
“dependent” in section 152 of Title 26, but are not
otherwise eligible under this section, 20 per centum of
such wages for the support of each such person during
such dependency and for the support of each parent, or
grandparent, of the deceased if dependent upon him at the
time of the injury, 25 per centum of such wages during
such dependency. But in no case shall the aggregate -
amount payable under this subdivision exceed the
difference between 66 2/3 per centum of such wages and

App. 58

the amount payable as hereinbefore provided to widow or
widower and for the support of surviving child or children.

(e) In computing death benefits, the average weekly
wages of the deceased shall not be less than the national
average weekly wage as prescribed in section 906(b) of
this title, but--

(1) the total weekly benefits shall not exceed the
lesser of the average weekly wages of the deceased or the
benefit which the deceased employee would have been
eligible to receive under section 906(b)(1) of this title; and

(2) in the case of a claim based on death due to an
occupational disease for which the time of injury (as
determined under section 910(i) of this title) occurs after
the employee has retired, the total weekly benefits shall not
exceed one fifty-second part of the employee’s average
annual earnings during the 52-week period preceding
retirement.

(f) All questions of dependency shall be determined as
of the time of the injury.

The Virginia Workers’ Compensation Act, Va. Code
Ann. §§ 65.2-302, -307, -512, -515, -516 (Michie 1995 &
Supp. 1999).

§ 65.2-302. Statutory employer.

A. When any person (referred to in this section as
“owner”) undertakes to perform or execute any work-
which is a part of his trade, business or occupation and
contracts with any other person (referred to in this section
as “subcontractor”) for the execution or performance by or
under such subcontractor of the whole or any part of the
work undertaken by such owner, the owner shall be liable

App. 59

to pay to any worker employed in the work any
compensation under this title which he would have been
liable to pay if the worker had been immediately employed
by him.

B. When any person (referred to in this section as
“contractor”) contracts to perform or execute any work for
another person which work or undertaking is not a part of
the trade, business or occupation of such other person and
contracts with any other person (referred to in this section
as “subcontractor”) for the execution or performance by or
under the subcontractor of the whole or any part of the
work undertaken by such contractor, then the contractor
shall be liable to pay to any worker employed in the work
any compensation under this title which he would have
been liable to pay if that worker had been immediately
employed by him.

C. When the subcontractor in turn contracts with still
another person (also referred to as “subcontractor”) for the
performance or execution by or under such last
subcontractor of the whole or any part of the work
undertaken by the first subcontractor, then the liability of
the owner or contractor shall be the same as the liability
imposed by subsections A and B of this section.

§ 65.2-307. Employee’s rights under Act exclude all
others.

A. The rights and remedies herein granted to an
employee when his employer and he have accepted the
provisions of this title respectively to pay and accept
com#enration on account of injury or death by accident
shall <sclude all other rights and remedies of such
employee, his personal representative, parents, dependents
or next of kin, at common law or otherwise, on account of
such injury, loss of service or death.

App. 60

B. Notwithstanding this exclusion, nothing in the Act
shall bar an employer from voluntarily agreeing to pay an
employee compensation above and beyond those benefits
provided for in the Act. Nothing herein, however, shall be
deemed to affect or alter any existing right or remedy of
the employer or employee under the Act.

§ 65.2-512. Compensation to dependents of an employee
killed; burial expenses.

A. If death results from the accident within nine years,
the employer shall pay, or cause to be paid, compensation
in weekly payments equal to 66 2/3 percent of the
employee’s average weekly wages, but not more than 100
percent of the average weekly wage of the Commonwealth
as defined in § 65.2-500 nor less than 25 percent of the
average weekly wage as defined therein:

1. To those persons presumed to be wholly
dependent upon the deceased employee as set forth in
subdivisions A 1, A 2, and A 3 of § 65.2-515, for a period
of 500 weeks from the date of injury; or

2. If there are no total dependents pursuant to
subdivision A 1, A 2, or A 3 of § 65.2-515, to those
persons presumed to be wholly dependent as set forth in
subdivision A 4 of § 65.2-515, and to those determined to
be wholly dependent in fact, for a period of 400 weeks
from the date of injury; or

3. If there are no total dependents, to partial
dependents in fact, for a period of 400 weeks from the date
of injury.

B. The employer shall also pay burial expenses not

exceeding $10,000 and reasonable transportation expenses
for the deceased not exceeding $1,000.

App. 61

C. Benefits shall be divided equally among total
dependents, to the exclusion of partial dependents. If there
are no total dependents, benefits shall be divided among
partial dependents according to the dependency of each
upon the earnings of the employee at the time of the injury,
in the proportion that partial dependency bears to total
dependency.

D. If benefits are terminated as to any member of a
class herein, that member’s share shall be divided among
the remaining members of the class proportionately
according to their dependency.

E. When weekly payments have been made to an
injured employee before his death, the compensation to
dependents shall begin from the date of the last of such
payments but shall not continue for a period longer than
specified in subsection A of this section.

§ 65.2-515. Persons conclusively presumed to be wholly
dependent.

A. The following persons shall be conclusively
presumed to be dependents wholly dependent for support
upon the deceased employee:

1. A wife upon a husband whom she had not
voluntarily deserted or abandoned at the time of the
accident or with whom she lived at the time of his
accident, if she is then actually dependent upon him;

2. A husband upon a wife whom he had not
voluntarily deserted at the time of the accident or with
whom he lived at the time of her accident, if he is then
actually dependent upon her;

App. 62

3. A child under the age of eighteen upon a parent
and a child over such age if physically or mentally
incapacitated from earning a livelihood or a child under the
age of twenty-three if enrolled as a full-time student in any
accredited educational institution; and

4. Parents in destitute circumstances, provided
there be no total dependents pursuant to other provisions
of this section.

B. As used in this section, the term “child” shall
include a stepchild, a legally adopted child, a posthumous
child, and an acknowledged illegitimate child, but shall not
include a married child; and the term “parent” shall include
stepparents and parents by adoption.

§ 65.2-516. Other cases of dependency.

In all other cases questions of dependency in whole or
in part shall be determined in accordance with the facts as
the facts are at the time of the accident; but no allowance
shall be made for any payment made in lieu of board and
lodging or services and no compensation shall be allowed
unless the dependency existed for a period of three months
or more prior to the accident.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1510%3A03. Public record. Not legal advice.